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Audrey came to our office which specializes in dental malpractice, on referral, from her former lawyer. It was May 2009. She was an attractive, young, single mom. She loved her work as a speech pathologist in a local hospital cancer clinic. However, for the past two years she was on a work reassignment. She received partial disability benefits, and worked from her home. She was considering suing and wanted to know whether she could prove her case against an oral maxillo facial surgeon.
Audrey related her story. In November 2005, she attended at the office of Dr. Smart, an oral maxillo facial surgeon. She had just celebrated her 28th birthday. She was to undergo the extraction of an upper second molar, tooth 27. It was decayed and ectopically positioned. The occlusal surface faced towards her cheek. She found the tooth difficult to clean. It was recommended that removal was the best option. Audrey completed a Consent to Treatment, which advised of risks including localized nerve damage and other risks such as bruising, and infection. She completed a Dental history and a Medical history. Both histories were negative for illnesses. Audrey was a healthy, young and athletic woman. She was not aware of any pre-existing conditions which would prevent her from undergoing the extraction. She was confident that Dr. Smart, a highly recommended practitioner, could perform this straightforward procedure.
In our last Legal Forum of Spectrum Dialogue we reported Annie’s disturbing case involving a failed root canal treatment. Annie was a patient of Dr. Lax, an incompetent general practitioner. Dr. Lax did not offer a referral to a specialist at four critical appointments. Instead he performed an endo himself. Annie’s tooth, 36, was a first lower molar with long curved calcified roots. On September 6, 2000 Dr. Lax, announced that he had finished the procedure. At the next appointment he restored the canals. However, he failed to remove all of the liquified necrotic tissue from the distal canal of the tooth. Dr. Lax was aware of this defiency. He never told Annie. To make matters worse he did not take a single x-ray of the 36 area for four years post treatment. Unfortunatnely Dr. Lax’s poor clinical skills and less than candid behaviour had dire and devastating consequences for Annie and her family.
Annie, was housebound, in effect a recluse. During the summer of 2005, Annie partook in her usual afternoon past time, surfing the Net. She googled “dental malpractice lawyer Ontario”. Bingo! A hit ! Annie had just discovered our law firm.
That fall Annie came to us for a meeting. She was convinced that her dentist was to blame for her situation. She described in great detail how she had been wronged by her trusted family dentist. I became her lawyer in her fight to prove her case and to recover compensation for her devasting losses.
What follows is Annie’s story as told to me that fall day.
You last read about the exploits of Dr. Don Juan, the self promoting, one stop general practitioner and Dotty the former television and radio host in my column Legal Forum, in Spectrum Dialogue Vol 7 No 2. Dotty’s media career was devastated. She was no longer presentable on air as a Beauty consultant and representative. The good dentist failed to deliver the promised “perfect smile”. His pledge to “change her life” unfortunately in Dotty’s case became a change for the worse. The result of his ruinous treatments was grotesque chicklet sized teeth accompanied by a 5 mm gap above her upper anteriors. She now had a discernable whistle, poor diction and a lisp. Her speech coach could not eradicate her speech impediments. Say nothing about the saliva which uncontrollably sprayed the innocent bystander whenever she spoke.
In the last issue of SPECTRUM, we met Dotty the former radio and TV talk show host and her dentist, Dr. Don Juan, the self promoting, one stop general practitioner. You may recall that Dotty was promised four upper implants, a “perfect smile” and a “changed life” for 50 K.
Dr. Don Juan was true to his philosophy. He took care of everything at his office. All practice areas, surgical, restorative and prosthetic phases of full-mouth reconstructive dentistry, replacement of missing bone, periodontal surgery, crown and bridge nothing was too complicated for the confident Dr. Juan. After all he was known as a perfectionist and a professional with a gentle touch.
Dotty called me in the spring of 2004. She had a pronounced lisp; some might say a speech impediment. She told me her bizarre story. According to Dotty, Dr. Don Juan cast a spell over her. His partner and office manager who happened to be his spouse extracted 50 K from Dotty to carry out total mouth reconstruction, although Dotty really only wanted her upper anterior veneers redone. He promised his dental work would advance her career and change her life. He would give her the ‘perfect smile’. A smile just like his wife’s smile and his work was all guaranteed. The pitch worked.
What followed were several years of failed barbaric dentistry and seduction while under the influence of conscious sedation and valium. This caused the destruction of her smile and loss of her career as a national radio talk show producer and on air health and beauty spokesperson. The perpetrator of this abuse was Dr. Don Juan, the self-promoting cosmetic general dentist she had met at a health and beauty trade show. Several years passed. Then in the spring of 2007, Dotty called me again. She was ready to take action. At the very least she wanted compensation to rebuild her mouth and life. We arranged to meet.
We last met with Mary on the eve of her mandatory mediation session. All parties in a civil law suit must attend one such session. Defence counsel and I agreed to proceed with our choice, mediator, Sue. She had considerable experience in the insurance industry. A full day mediation was scheduled.
Both parties exchanged briefs setting out our respective legal positions. We included our supportive medical reports. We also retained a structured settlement firm who prepared a report to determine the cost of purchase of an annuity with the settlement funds. If we settled the case and Mary received a lump sum based upon the buy out of her disability policy, the insurer would be entitled to a discount for payment of all of her future benefits made upfront.
Mary and her husband, Steve were advised if they agreed to accept a lump sum for damages and Mary signed a release, this would terminate all past and future claims for compensation against RBC Insurance. Mary was worn down emotionally and financially. She knew that her Carpal Tunnel Syndrome was irreversible. She had not worked as an expanded dental hygienist since February 2004 when she initiated her claim for benefits. RBC had denied her monthly benefits of $1950.00. She wanted closure; her hubbie still had some fight left in him. He wanted revenge. Mary instructed me to get the best possible lump sum payment. I listened to her though sympathetic to Steve.
In the last Legal Forum you met Mary, the Expanded Duty Dental Hygienist, suffering from Bilateral Carpal Tunnel Syndrome.
You will recall Mary’s doctor told her in February 2004 she could not continue working She risked permanent damage to her hands and injury to soft tissues if she persisted at the occupation she so loved. Her career as an expanded duty dental hygienist was all but over. However Mary had prudently purchased income replacement insurance over a decade before. It was an occupation own disability policy. She made two claims earlier on when pregnancy increased her symptoms. Her insurer put her on short term disability benefits both times. However after her second pregnancy her symptoms worsened. She diligently complied with doctors orders taking antiinflammatory and pain prescriptions. She reduced work hours, and attended at numerous ineffective physio sessions. Each night she wore cumbersome hand and wrist splints. He mother took over the care of her young children. She even took the drastic step of relocating her home to reduce her daily commute by car to the office. Mary was a full time dental hygienist however on the recommendation of her doctor was now working 3 days per week. She modified her tasks, work station and routines. Despite initiating all of these measures her hand weakness and pain increased. She became depressed and sleep deprived. She was stressed at home. Mary’s long term health was in jeopardy; however it was her concern for her patients’ safety, the fear of dropping sharp instruments, while working with weak hands, in an exhausted state which led Mary to the decision. Mary tendered her resignation with Dr. Goody and filed for disability benefits.
Mary, an expanded duty Dental Hygienist came to my office in February 2004. She could no longer work. Mary had purchased income replacement insurance, an Occupation Own Sickness and Injury Disability insurance policy from Paul Revere Life Insurance Company on September 3, 1985. Her policy with Paul Revere was eventually assigned to RBC Life Insurance Company.
Mary’s disability insurance policy guaranteed maximum payments of $1950.00 per month to her to age 65, shouldshe become totally disabled.
Dental hygienists and other dental professionals are predisposed to work related repetitive stress injury.
Mary recounted her employment history to me and related the development of her career ending disability. In May 1993, Mary became pregnant with her first child. Soon after she was diagnosed as suffering from work related Bilateral Carpal Tunnel Syndrome (CTS). She took early maternity leave because of her increasing symptoms and made a claim for partial disability to her insurer. It was approved and she received payment of short term benefits. She supplemented her disability benefits with employment insurance benefits. One year later she returned to work. Immediately she noted her hands tingled and her wrists ached. Shortly thereafter Mary became pregnant with her second child. She made another claim for disability benefits which was again approved. She noticed however that when her maternity leave was over and she returned to work her CTS symptoms continued and were worse then ever.
Mary’s family doctor prescribed a reduction of her work week from 40 hours to 28 hours. When Mary reported that her symptoms would not let up and were exacerbated by work she was further prescribed a work reduction to 3 days per week or 22.5 hours per week. Mary loved her work. She hoped that diligent compliance with her doctor’s orders would eventually have her back to a full time work schedule in no time. However she continued to suffer. In addition to a reduction of hours of work Mary modified her daily work routines and dental hygiene duties.